NewDefendant (None) 11 July 2010

When time is not the essence of contract

Hello,

I need your help in making me understand the following:

I was the vendor and was sued for specific performance under an Agreement for Sale.

The deal went sour as the Vendor refused in writing to perform one of the essential terms and conditions of the Agreement. The deal could not go forward until he complied with this condition and he wanted me to perform with his complying with the same. He finally performed as required under the condition, but three months after he filed the suit for specific performance (and about 15 months after signing of agreement).

Can the Court still grant him specific performance because time was not the essence of the contract and even though he at first flatly refused to perform?

Also, since I was never in breach of the contract terms and it was he who delayed performance, can he be entitled to any compensation? I am more than willing to refund his 10% advance.

Thank you.

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3 Replies

prashant1314 (HR Learner) 11 July 2010

Unless the object of Contract is not clear we can not suggest you deteminedly.

N.K.Assumi (Advocate) 11 July 2010

Dear Anya, time is not the essence when the matter of time is not expressly agreed by the parties or implied by the nature of contract or no application from promisee is made. Usually the term of 'time is of the essence' is not inserted in the contract when the subject matter of the contract does not require the time performance to be imperative which would result in serious damages as consequences. If time is not of the essence (no time for performance is specified), the engagement must be performed within a reasonable time.

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NewDefendant (None) 12 July 2010

Thank you very much Mr Assumi.

My question is if the Plaintiff refuses to perform an essential condition of the Agreement (even after he filed the case) which was required to be performed, and therefore not continuously ready and willing, can the Court still grant him specific performance because time was not the essence of the contract? The point is I could not have performed my part until he first fulfilled his obligation. Thanks.